U.S. v. Allende, 66 M.J. 142

Military Justice Personnel: Prosecution Function: Trial Counsel

1. under the direction of the military judge, the trial counsel makes arrangements for preparation of the record; the trial counsel examines the record and makes any necessary corrections; during this process, the trial counsel permits the defense counsel to examine the record except when unreasonable delay will result
2. trial counsel may authenticate the record of trial if the military judge cannot do so by reason of his death, disability, or absence

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. the military judge authenticates the record of each general court-martial

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Presumptions, Inferences

1. substantial omissions from the record of trial create a presumption of prejudice that may be rebutted by the government

Trial Stages: Initial Review: Preparation of Record of Trial

1. Article 54(a) requires each general court-martial to keep a record of the proceedings; under the direction of the military judge, the trial counsel makes arrangements for preparation of the record; the trial counsel examines the record and makes any necessary corrections; during this process, the trial counsel permits the defense counsel to examine the record except when unreasonable delay will result
2. a complete record of the proceedings, including a verbatim written transcript, must be prepared for each general court-martial in which the sentence includes a discharge; substantial omissions from the record create a presumption of prejudice that may be rebutted by the government

Trial Stages: Initial Review: Authentication of Record of Trial

1. the military judge authenticates the record of each general court-martial; trial counsel may authenticate the record if the military judge cannot do so by reason of his death, disability, or absence; in circumstances not pertinent to the present case, there are other options for substitute authentication
2. the person who authenticates the record of trial in the absence of the military judge should attach to the record of trial an explanation for the substitute authentication; any deficiency with respect to explaining the need for substitute authentication is tested for prejudice under a harmless error standard of review

Trial Stages: Appeals: Harmless / Prejudicial Error

1. substantial omissions from the record of trial create a presumption of prejudice that may be rebutted by the government
2. any deficiency with respect to explaining the need for substitute authentication of the record of trial is tested for prejudice under a harmless error standard of review
3. where the error in the substitute authentication of the record of trial by trial counsel, an official designated by Article 54(a), UCMJ, as eligible to authenticate the record in a substitute capacity, involved the adequacy of the explanation for use of a substitute authority, the burden is on appellant to demonstrate prejudice
4. despite the erroneous authentication of the record of trial by trial counsel without an adequate explanation for the use of a substituted authority, appellant failed to demonstrate material prejudice to his substantial rights under Article 59(a), UCMJ, where he failed to show that the error regarding the explanation for using a substitute produced an inaccurate record, or otherwise prejudiced his right to submit a brief under Article 38, UCMJ, to obtain post-trial clemency under Article 60, UCMJ, to present an issue to the court of criminal appeals under Article 66, UCMJ, or to raise an issue of law before CAAF

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. substantial omissions from the record of trial create a presumption of prejudice that may be rebutted by the government
2. any deficiency with respect to explaining the need for substitute authentication of the record of trial is tested for prejudice under a harmless error standard of review
3. a ruling by a court of criminal appeals that appellant was not prejudiced by an erroneous substitute authentication of the record of trial is a question of law that CAAF reviews de novo
4. where the error in the substitute authentication of the record of trial by trial counsel, an official designated by Article 54(a), UCMJ, as eligible to authenticate the record in a substitute capacity, involved the adequacy of the explanation for use of a substitute authority, the burden is on appellant to demonstrate prejudice

Miscellaneous Matters: Speedy Trial: Post-Trial

1. seven-year delay between adjournment of appellant’s court-martial and resolution of his Article 66, UCMJ, appellate review was assumed error, but was harmless error beyond a reasonable doubt, where appellant had not suffered ongoing prejudice in the form of oppressive incarceration, undue anxiety, or the impairment of the ability to prevail in a retrial, had not suffered detriment to his legal position in the appeal as a result of the delay, and failed to provide any substantiated evidence that his ability to obtain employment had been impaired because he had not been able to show employers a DD-214, the certificate of release from active duty